Executor Duties in Ontario: A Complete Plain-Language Guide

Being named executor, called an estate trustee in Ontario, can feel like a second job that arrives during a hard time. The role carries real legal responsibilities, and mistakes can have personal consequences.

This guide follows the usual path from the first steps through probate, taxes, records and distribution, and explains the standard of care and what happens if beneficiaries or co-executors disagree.

Your role and whether you must take it on

Estate trustee duties include finding the will, winding up the deceased's affairs, paying taxes, bills and other debts, and distributing what remains to those entitled. A continuing power of attorney for property ends when the grantor dies, and from that date the estate trustee named in the will deals with the property.

A person named as estate trustee does not have to act. If the named trustee declines or cannot act, the beneficiaries may nominate another person. When a named executor renounces probate, their rights as executor wholly cease. Any person with a financial interest may also move for an order requiring a named person to accept or refuse the appointment. After you start acting, stepping down generally needs a court order.

Probate and the early filings

A probate application must include a renunciation (Form 74G) from every living person named in the will as estate trustee who has not joined the application. Within 180 calendar days of receiving a certificate of appointment, the estate trustee must file an Estate Information Return with the value of the deceased's assets at death.

For applications made on or after January 1, 2020, no Estate Administration Tax is payable if the estate is $50,000 or less, and above that the tax is $15 for each $1,000 (or part) over $50,000. Bonds are sometimes required, depending on factors such as where the applicant lives and the type of appointment.

The standard of care: records, spending and investing

• Records: keep accurate records of the assets and transactions in the estate.
• Expenses: a trustee who believes an expense is properly incurred in carrying out the trust may pay it from trust property, or pay it personally and recover the same amount. The court may later disallow it if it was not properly incurred.
• Investing: use the care, skill, diligence and judgment of a prudent investor.
• Several trustees: joint powers given to two or more trustees may be exercised by the survivor or survivors for the time being.
• Claims for the deceased: an executor may bring actions for torts committed against the deceased, but they must be started within two years of the death.

If a trustee breaches the trust, the court may relieve them from personal liability if they acted honestly and reasonably and ought fairly to be excused. That is a safety valve, not a plan, so careful records and professional advice remain your best protection.

Taxes before you distribute

The legal representative must make sure the deceased's tax returns are filed and any balance owing is paid before distributing the estate, and should apply for a clearance certificate as needed. A final T1 return is due April 30 of the following year if death occurred between January 1 and October 31, or 6 months after death if it occurred between November 1 and December 31. If the deceased or their spouse or common-law partner carried on a business, the due date is June 15 of the following year for deaths from January 1 to December 15, though any balance owing is still due on the regular payment date.

An estate's T3 return must be filed, and any balance paid, no later than 90 days after the trust's tax year-end. A clearance certificate, requested on Form TX19 after the returns are filed and assessed, confirms that tax owed has been paid. Distributing without one makes the legal representative personally liable for unpaid tax, up to the value of the assets distributed.

Accounts, compensation and disputes

Ontario has no statutory requirement to pass accounts at fixed intervals, and a trustee may choose not to unless the court compels it. However, any person who appears to have a financial interest may move for an order requiring the estate trustee to pass accounts, and may also ask for a statement of the nature and value of the estate's assets at the date of death. On a passing, the judge can inquire into complaints, including misconduct or neglect causing loss, and may order payment to the estate.

An estate trustee is entitled to a fair and reasonable allowance for the care, pains, trouble and time spent on the estate, as allowed by a judge of the Superior Court of Justice. This does not apply where the will fixes the allowance. Taking compensation before accounts are passed is permitted only with the agreement of all interested persons who are sui juris, with court approval, or where the will provides for it. If the court later approves a lower amount, it can order the difference repaid. Fees paid to an executor are taxable.

If co-executors disagree, they can apply to the court for its opinion, advice or direction without starting an action, and a trustee who follows that direction is treated as having discharged their duty, unless there was fraud, wilful concealment or misrepresentation. The court may also remove an estate trustee and appoint another proper person.

What to do next

• Locate the will and confirm whether you are named and willing to act.
• Gather statements, property records and a list of debts.
• Open an estate account and keep every receipt.
• Calendar the Estate Information Return and tax deadlines.
• Do not distribute until tax clearance is settled.
• Speak with a lawyer or accountant when a question, dispute or large asset arises.

Frequently asked questions